Equity of Punishment

By Winston Smith

“Punishment is not for revenge, but to lessen crime and reform the criminal.”

Elizabeth Fry

The law imposes limitations on our actions, and, therefore, the behaviors that we have. In its most ideal sense, the law is structured so that it drives those under it to behave justly to their counterparts while also providing a civilized structure in which to punish those who violate the law. These punishments have developed substantially as society has developed. One of, if not the, oldest examples of law in human civilization is the Code of Hammurabi. We are almost universally aware that this infant legal code centered around doctrine of “doctrine of ‘lex talionis,’ or the laws of retribution, sometimes better known as ‘an eye for an eye.’”

Naturally, as societies have progressed, their codes of law have also progressed. The natural evolution of the law is a reflection on the norms and values of that particular society have developed over time. For example, in 1966 there were laws in the United States which banned interracial marriage. However, in Loving v. Virginia the Supreme Court found that Virginia’s antimiscegenation law violated the Equal Protection Clause of the Fourteenth Amendment. This is one out of tens of thousands of examples wherein our legal system has continued to reflect the societal norms that have been adopted or shunned.

For a justice system committed to treating like offenders alike, scaling fines to income is a matter of basic fairness. Making everyone pay the same sticker price is evenhanded on the surface, but only if you ignore the consequences of a fine on the life of the person paying. The flat fine threatens poor people with financial ruin while letting rich people break the law without meaningful repercussions. Equity requires punishment that is equally felt. (emphasis added)

So what are we to do? Schierenbeck proposes that we adopt a system of progressive fines. In his NYT article he primarily focuses on the use of day fines as a way to create a more equitable system of punishment. However, while this system of punishment may be practical, does it fit within the five purposes of punishment? Remember that the five purposes are deterrence, incapacitation, rehabilitation, retribution, and restitution. While any fine punishment does in some way address restitution, does a progressive fine satisfy in some way deterrence, incapacitation, rehabilitation and retribution?

Interestingly, a progressive fine may meet both specific and general deterrence. The most infamous examples of the use of a progressive fines have occurred in Finland where a businessman was required to pay a €54,000 speeding ticket. In 2002 a Nokia executive was fined the equivalent of $103,000 for going 45 in a 30. These individuals do seem to have incurred fines where they are theoretically less likely to commit this offence again and they were so well publicized that this writer doesn’t even want to drive in Finland. Of course a monetary fine could never satisfy incapacitation or rehabilitation in any meaningful way.This leaves only retribution, preventing future crimes by removing the desire for personal avengement. Now no specific person is injured by the act of speeding (except I want to make sure the guy who sped to cut me off never gets to work on time). Therefore, while I came here to write about how ridiculous this idea was, it does seem to be a just way to scale monetary punishments. A $125 fine to the working poor can be equally detrimental as a $103,000.00 fine can be to an executive of a major multinational telecommunications company executive. Lets not pretend that a $125 fine to the wealthy makes any true impact on their future behavior or truly punishes them.

Let’s make our system of punishments more equitable. Now, this doesn’t mean that punishments should be lighter. Much the opposite, monetary punishments should be equally as impactful to all regardless of their class status. It is simple minded to maintain that all monetary punishments have the same effect across all classes. If we are going to have monetary punishments (and we should) then make them mean something. To everyone.